Innua Australasia Pty Ltd v Fortis Bank (Nederland) NV & anor [2009] NSWSC 179

Innua Australasia Pty Ltd v Fortis Bank (Nederland) NV & anor [2009] NSWSC 179

Although Innua had a seriously arguable case that 20 per cent of receipts had been carved out of Fortis' security, Fortis also had a seriously arguable and, at this stage, stronger case. The balance of convenience did not favour permitting Innua interim access to the disputed 20 per cent because doing so would materially erode Fortis' prima facie security and proprietary rights, while Innua offered no substitute security.

Jurisdiction
Australia
Judgment Date
25 February 2009
Procedural Posture
Equity Division Proceeding Concerning Interlocutory Orders, Receivership, Security Interests and Receivables / Interlocutory Motions for Variation, Directions and Interim Access to Funds
Outcome
Orders varied to clarify the original intent and interim access by Innua to the disputed 20 per cent was refused; further orders were made for remittances, reporting and costs.
Legal Topics
['interlocutory Injunction' 'variation of Orders' 'balance of Convenience' 'fixed and Floating Charge' 'receivables' 'nominated Collections Account' 'court Appointed Receiver' 'secured Creditor Proprietary Rights']
['equity' 'civil Procedure' 'banking and Finance' 'secured Transactions' 'receivership'] ['interlocutory Injunction' 'variation of Orders' 'balance of Convenience' 'fixed and Floating Charge' 'receivables' 'nominated Collections Account' 'court Appointed Receiver' 'secured Creditor Proprietary Rights']

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Procedural Posture

Equity Division Proceeding Concerning Interlocutory Orders, Receivership, Security Interests and Receivables / Interlocutory Motions for Variation, Directions and Interim Access to Funds

Legal Issues

  1. 1 ["Whether, pending final resolution, 80 per cent of amounts received since 15 January 2009 into the nominated collections account and the receiver's account should be paid to Fortis." 'Whether Innua or its receiver should be at liberty to use the other 20 per cent to satisfy unsecured creditors.' 'Whether directions sought by the receiver should be made.']

Ratio Decidendi

Although Innua had a seriously arguable case that 20 per cent of receipts had been carved out of Fortis' security, Fortis also had a seriously arguable and, at this stage, stronger case. The balance of convenience did not favour permitting Innua interim access to the disputed 20 per cent because doing so would materially erode Fortis' prima facie security and proprietary rights, while Innua offered no substitute security.

Court Disposition

Orders varied to clarify the original intent and interim access by Innua to the disputed 20 per cent was refused; further orders were made for remittances, reporting and costs.

Orders

  • ['Orders 4 and 5 made on 15 January 2009 and subsequently continued until further order were varied by adding order 5A stating that the first defendant may withdraw, transfer or otherwise deal with $564,765.40 standing to the credit of the nominated collections account on condition that it first remit $141,191.35 to...